Islands: Philippines’ control is null and void
Districts of the Republic of China) including Nan Hai Zhu Dao Wei Zhi Tu (Location Map of the South China Sea Islands).
31. In June 1949, the Chinese government promulgated Hai Nan Te Qu Xing Zheng Zhang Guan Gong Shu Zu Zhi Tiao Li (Regulations on the Organization of the Office of the Chief Executive of the Hainan Special District), which placed Hainan Dao, Dongsha Qundao, Xisha Qundao, Zhongsha Qundao, Nansha Qundao and some other islands under the jurisdiction of the Hainan Special District.
32. Since its founding on 1 October 1949, the People’s Republic of China has repeatedly reiterated and further upheld its sovereignty over Nanhai Zhudao and relevant rights and interests in the South China Sea by measures such as adopting legislations, establishing administration and making diplomatic representations. China has never ceased carrying out activities such as patrolling and law enforcement, resources development and scientific survey on Nanhai Zhudao and in the South China Sea.
33. In August 1951, Foreign Minister Zhou Enlai, in his Statement on the United States-British Draft Peace Treaty with Japan and the San Francisco Conference, pointed out that “as a matter of fact, just like all the Nan Sha Islands, Chung Sha Islands and Tung Sha Islands, Si Sha Islands (the Paracel Islands) and Nan Wei Island (Spratly Island) have always been China’s territory, occupied by Japan for some time during the war of aggression waged by Japanese imperialism, they were all taken over by the then Chinese Government, following Japan’s surrender”, “Whether or not the United States-British Draft Treaty contains provisions on this subject and no matter how these provisions are worded, the inviolable sovereignty of the People’s Republic of China over Nan Wei Island (Spratly Island) and Si Sha Islands (the Paracel Islands) will not be in any way affected.”
34. In September 1958, China promulgated the Declaration of the Government of the People’s Republic of China on China’s Territorial Sea, explicitly providing that the breadth of China’s territorial sea shall be twelve nautical miles, that the straight baselines method shall be employed to determine the baselines of territorial sea and that such provisions shall apply to all territories of the People’s Republic of China, including “Dongsha Qundao, Xisha Qundao, Zhongsha Qundao, Nansha Qundao and all the other islands belonging to China”.
35. In March 1959, the Chinese government set up, on Yongxing Dao of Xisha Qundao, the Office of Xisha Qundao, Nansha Qundao and Zhongsha Qundao. In March 1969, the Office was renamed the Revolutionary Committee of Xisha Qundao, Zhongsha Qundao and Nansha Qundao of Guangdong Province. In October 1981, the name of the Office of Xisha Qundao, Nansha Qundao and Zhongsha Qundao was restored.
36. In April 1983, China Committee on Geographical Names was authorized to publish 287 standard geographical names for part of Nanhai Zhudao.
37. In May 1984, the Sixth National People’s Congress decided at its Second Session to establish the Hainan Administrative District with jurisdiction over Xisha Qundao, Nansha Qundao and Zhongsha Qundao and the relevant maritime areas, among others.
38. In April 1988, the Seventh National People’s Congress decided at its First Session to establish Hainan Province with jurisdiction over Xisha Qundao, Nansha Qundao and Zhongsha Qundao and the relevant maritime areas, among others.
39. In February 1992, China promulgated the Law of the People’s Republic of China on the Territorial Sea and the Contiguous Zone, establishing China’s basic system of territorial sea and contiguous zone. This Law explicitly states: “The land territory of the People’s Republic of China includes […] Dongsha Qundao; Xisha Qundao; Zhongsha Qundao; Nansha Qundao; as well as all the other islands belonging to the People’s Republic of China.” In May 1996, the Standing Committee of the Eighth National People’s Congress made the decision at its Nineteenth Session to ratify UNCLOS, and at the same time declared that, “The People’s Republic of China reaffirms its sovereignty over all its archipelagoes and islands as listed in Article 2 of the Law of the People’s Republic of China on the Territorial Sea and the Contiguous Zone which was promulgated on 25 February 1992.”
40. In May 1996, the Chinese government announced the baselines of the part of the territorial sea adjacent to the mainland which are composed of all the straight lines joining the 49 adjacent base points from Gaojiao of Shandong to Junbijiao of Hainan Dao, as well as the baselines of the territorial sea adjacent to Xisha Qundao which are composed of all the straight lines joining the 28 adjacent base points, and declared it would announce the remaining baselines of the territorial sea at another time.
41. In June 1998, China promulgated the Law of the People’s Republic of China on the Exclusive Economic Zone and the Continental Shelf, establishing China’s basic system of exclusive economic zone and continental shelf. This Law explicitly states: “The provisions in this Law shall not affect the historic rights that the People’s Republic of China enjoys.”
42. In June 2012, the State Council approved the abolition of the Office of Xisha Qundao, Nansha Qundao and Zhongsha Qundao and the simultaneous establishment of prefecture-level Sansha City with jurisdiction over Xisha Qundao, Nansha Qundao and Zhongsha Qundao and the relevant waters.
43. China attaches great importance to ecological and fishery resource preservation in the South China Sea. In 1999, China began to enforce summer fishing moratorium in the South China Sea and has done so since that time. By the end of 2015, China had established six national aquatic biological nature reserves and six such reserves at provincial level, covering a total area of 2.69 million hectares, as well as seven national aquatic germplasm resources conservation areas with a total area of 1.28 million hectares.
44. Since the 1950s, the Taiwan authorities of China have maintained a military presence on Taiping Dao of Nansha Qundao. For a long time, they have also maintained civil service and administration bodies and carried out natural resources development on the island. 45. After the end of the Second World War, China recovered and resumed the exercise of sovereignty over Nanhai Zhudao. Many countries recognize that Nanhai Zhudao are part of China’s territory.
46. In 1951, it was decided at the San Francisco Peace Conference that Japan would renounce all right, title and claim to Nansha Qundao and Xisha Qundao. In 1952, the Japanese government officially stated that it had renounced all right, title, and claim to Taiwan, Penghu, as well as Nansha Qundao and Xisha Qundao. In the same year, Xisha Qundao and Nansha Qundao, which Japan renounced under the San Francisco Peace Treaty, together with Dongsha Qundao and Zhongsha Qundao, were all marked as belonging to China on the 15th map, Southeast Asia, of the Standard World Atlas recommended by the then Japanese Foreign Minister Katsuo Okazaki with his signature.
47. In October 1955, the International Civil Aviation Organization held a conference in Manila, which was attended by representatives from the United States, the United Kingdom, France, Japan, Canada, Australia, New Zealand, Thailand, the Philippines, the authorities from South Vietnam and China’s Taiwan authorities. The Filipino and French representatives served as chair and vice chair respectively. It was requested in Resolution No. 24 adopted at the conference that China’s Taiwan authorities should enhance meteorological observation on Nansha Qundao, and no opposition or reservation was registered.
48. On 4 September 1958, the Chinese government promulgated the Declaration of the Government of the People’s Republic of China on China’s Territorial Sea, proclaiming a twelve-nautical-mile territorial sea breadth, and stipulating that, “This provision applies to all territories of the People’s Republic of China, including [...] Dongsha Qundao, Xisha Qundao, Zhongsha Qundao, Nansha Qundao, and all other islands belonging to China.” On 14 September, Prime Minister Pham Van Dong of the Vietnamese government sent a diplomatic note to Zhou Enlai, Premier of the State Council of China, solemnly stating that “the government of the Democratic Republic of Vietnam recognizes and supports the declaration of the government of the People’s Republic of China on its decision concerning China’s territorial sea made on 4 September 1958” and “the government of the Democratic Republic of Vietnam respects this decision.”
49. In August 1956, First Secretary Donald E. Webster of the United States institution in Taiwan made an oral request to China’s Taiwan authorities for permission for the United States military personnel to conduct geodetic survey in Huangyan Dao, Shuangzi Qunjiao, Jinghong Dao, Hongxiu Dao and Nanwei Dao of Zhongsha Qundao and Nansha Qundao. China’s Taiwan authorities later approved the above request.
50. In December 1960, the United States government sent a letter to China’s Taiwan authorities to “request permission be granted” for its military personnel to carry out survey at Shuangzi Qunjiao, Jinghong Dao and Nanwei Dao of Nansha Qundao. China’s Taiwan authorities approved this application.
51. In 1972, Japan reiterated its adherence to the terms of Article 8 of the Potsdam Proclamation in the Joint Communiqué of the Government of the People’s Republic of China and the Government of Japan.
52. It was reported by AFP that, on 4 February 1974, the then Indonesian Foreign Minister Adam Malik stated that, “si nous regardons les cartes actuelles, elles montrent que les deux archipels des Paracels [Xisha Qundao] et des Spratleys [Nansha Qundao] appartiennent à la Chine”, and that because we recognize the existence of only one China, “cela signifie que, pour nous, ces archipels appartiennent à la République populaire de Chine”.
53. The 14th Assembly of the Intergovernmental Oceanographic Commission of the United Nations Educational, Scientific and Cultural Organization, held from 17 March to 1 April 1987, deliberated on the Global Sea-Level Observing System Implementation Plan 1985-1990 (IOC/INF-663 REV) submitted by the Commission’s Secretariat. The Plan integrated Xisha Qundao and Nansha Qundao into the Global Sea-Level Observing System, and explicitly listed these two Islands under “People’s Republic of China”. For the implementation of this Plan, the Chinese government was commissioned to build five marine observation stations, including one on Nansha Qundao and one on Xisha Qundao.
54. Nanhai Zhudao have long been widely recognized by the international community as part of China’s territory. The encyclopedias, yearbooks and maps published in many countries mark Nansha Qundao as belonging to China. For example this is done in, among others, the 1960 Worldmark Encyclopedia of the Nations by the Worldmark Press published in the United States, the 1966 New China Yearbook by the Far Eastern Booksellers published in Japan; the Welt-Atlas published in 1957, 1958 and 1961 in the Federal Republic of Germany, the 1958 Atlas Zur Erd-Und Länderkunde and the 1968 Haack Großer Weltatlas published in the German Democratic Republic, the Atlas Mira from 1954 to 1959 and the 1957 Administrativno-territorialnoe Delenie Zarubezhnyh Stran published in the Soviet Union, the 1959 Világatlasz and the 1974 Képes Politikai és Gazdasági Világatlasz published in Hungary, the 1959 Malý Atlas Svéta published in Czechoslovakia, the 1977 Atlas Geografic Scolar published in Romania, the 1965 Atlas international Larousse politique et économique, the 1969 Atlas moderne Larousse published by Libraire Larousse in France, the maps in the 1972 and 1983 World Encyclopedia, the 1985 Grand Atlas World by Heibon Sha, and the 1980 Sekai to Sono Kunikuni published by Japan Geographic Data Center in Japan. 55. The core of the relevant disputes between China and the Philippines in the South China Sea lies in the territorial issues caused by the Philippines’ invasion and illegal occupation of some islands and reefs of China’s Nansha Qundao. In addition, with the development of the international law of the sea, a maritime delimitation dispute also arose between the two states regarding certain sea areas of the South China Sea. 56. The territory of the Philippines is defined by a series of international treaties, including the 1898 Treaty of Peace between the United States of America and the Kingdom of Spain (the Treaty of Paris), the 1900 Treaty between the United States of America and the Kingdom of Spain for Cession of Outlying Islands of the Philippines (the Treaty of Washington), and the 1930 Convention between His Majesty in Respect of the United Kingdom and the President of the United States regarding the Boundary between the State of North Borneo and the Philippine Archipelago.
57. The Philippines’ territory so defined has nothing to do with China’s Nanhai Zhudao.
58. In the 1950s, the Philippines attempted to take moves on China’s Nansha Qundao but eventually stopped because of China’s firm opposition. In May 1956, Tomás Cloma, a Filipino, organized a private expedition to some islands and reefs of Nansha Qundao and unlawfully named them “Freedomland”. Afterwards, Philippine Vice President and Foreign Minister Carlos Garcia expressed support for Cloma’s activities. In response, the spokesperson of the Chinese Foreign Ministry issued a stern statement on 29 May, pointing out that Nansha Qundao “has always been a part of China’s territory. The People’s Republic of China has indisputable sovereignty over these islands [...] and will never tolerate the infringement of its sovereignty by any country with any means and under any excuse.” At the same time, China’s Taiwan authorities sent troops to patrol Nansha Qundao and resumed stationing troops on Taiping Dao. Afterward, the Philippine Department of Foreign Affairs said that the government of the Philippines did not know about Cloma’s activities or give him the consent before he took his moves.
59. Starting in the 1970s, the Philippines invaded and illegally occupied by force some islands and reefs of China’s Nansha Qundao and raised illegal territorial claims. The Philippines invaded and illegally occupied Mahuan Dao and Feixin Dao in August and September 1970, Nanyao Dao and Zhongye Dao in April 1971, Xiyue Dao and Beizi Dao in July 1971, Shuanghuang Shazhou in March 1978 and Siling Jiao in July 1980. In June 1978, Philippine President Ferdinand Marcos signed Presidential Decree No. 1596, which designated some islands and reefs of China’s Nansha Qundao and large areas of their surrounding waters as “Kalayaan Island Group” (“Kalayaan” in Tagalog means “Freedom”), set up “Municipality of Kalayaan” and illegally included them in the Philippine territory.
60. The Philippines has also enacted a series of national laws to lay its own claims of territorial sea, exclusive economic zone and continental shelf, part of which conflicted with China’s maritime rights and interests in the South China Sea.
61. The Philippines has concocted many excuses to cover up its invasion and illegal occupation of some islands and reefs of China’s Nansha Qundao in order to pursue its territorial pretensions. For instance, it claims that: “Kalayaan Island Group” is not part of Nansha Qundao but terra nullius; Nansha Qundao became “trust territory” after the end of the Second World War; the Philippines has occupied Nansha Qundao because of “contiguity or proximity” and out of “national security” considerations; “some islands and reefs of Nansha Qundao are located in the exclusive economic zone and continental shelf of the Philippines”; the Philippines’ “effective control” over the relevant islands and reefs has become the “status quo” that cannot be changed. 62. The Philippines’ territorial claim over part of Nansha Qundao is groundless from the perspectives of either history or international law.
63. First, Nansha Qundao has never been part of the Philippine territory. The territorial scope of the Philippines has already been defined by a series of international treaties. The United States, administrator of the Philippines at the relevant time, was clearly aware of these facts. On 12 August 1933, ex-Senator Isabelo de los Reyes of the United States-governed Philippines wrote a letter to Governor-General Frank Murphy in an attempt to claim that some Nansha islands formed part of the Philippine Archipelago on the ground of geographical proximity. That letter was referred to the Department of War and the Department of State. On 9 October, the United States Secretary of State replied that, “These islands [...] lie at a considerable distance outside the limits of the Philippine Islands which were acquired from Spain in 1898”. In May 1935, the United States Secretary of War George Dern wrote a letter to Secretary of State Cordell Hull, seeking the views of the State Department on the “validity and propriety” of the Philippines’ territorial claims over some islands of Nansha Qundao. A memorandum of the Office of Historical Adviser in the State Department, signed by S.W. Boggs, pointed out that, “There is, of course, no basis for a claim on the part of the United States, as islands constituting part of the Philippine Archipelago”. On 20 August, Secretary Hull officially replied in writing to Secretary Dern, stating that, “the islands of the Philippine group which the United States acquired from Spain by the treaty of 1898, were only those within the limits described in Article III”, and that, referring to the relevant Nansha islands, “It may be observed that [...] no mention has been found of Spain having exercised sovereignty over, or having laid claim to, any of these islands”. All these documents prove that the Philippines’ territory never includes any part of Nanhai Zhudao, a fact that has been recognized by the international community, including the United States.
64. Second, the claim that “Kalayaan Island Group” is “terra nullius” discovered by the Philippines is groundless. The Philippines claims that its nationals “discovered” the islands in 1956, and uses this as an excuse to single out some islands and reefs of China’s Nansha Qundao and name them “Kalayaan Island Group”. This is an attempt to create confusion over geographical names and concepts, and dismember China’s Nansha Qundao. As a matter of fact, the geographical scope of Nansha Qundao is clear, and the so-called “Kalayaan Island Group” is part of China’s Nansha Qundao. Nansha Qundao has long been an integral part of China’s territory and is by no means “terra nullius”.
65. Third, Nansha Qundao is not “trust territory” either. The Philippines claims that after the Second World War, Nansha Qundao became “trust territory”, the sovereignty over which was undetermined. This claim finds no support in law or reality. The post-War trust territories were all specifically listed in relevant international treaties or the documents of the United Nations Trusteeship Council. Nansha Qundao was never included in them and was thus not trust territory at all.
66. Fourth, neither “contiguity or proximity” nor national security is a basis under international law for acquiring territory. Many countries have territories far away from their metropolitan areas, in some cases even very close to the shores of other countries. When exercising colonial rule over the Philippines, the United States had a dispute with the Netherlands regarding sovereignty over an island which is close to the Philippine Archipelago, and the United States’ claim on the basis of contiguity was ruled as having no foundation in international law. Furthermore, it is just absurd to invade and occupy the territory of other countries on the ground of national security.
67. Fifth, the Philippines claims that some islands and reefs of China’s Nansha Qundao are located within its exclusive economic zone and continental shelf and therefore should fall under its sovereignty or form part of its continental shelf. This is an attempt to use maritime jurisdiction provided for under UNCLOS to deny China’s territorial sovereignty. This runs directly counter to the “land dominates the sea” principle, and goes against the purpose of UNCLOS, as stated in its preamble, to “establish [...] with due regard for the sovereignty of all States, a legal order for the seas and ocean”. Therefore, a coastal state can only claim maritime jurisdiction under the precondition of respecting the territorial sovereignty of another state. No state can extend its maritime jurisdiction to an area under the sovereignty of another; still less can it use such jurisdiction as an excuse to deny another state’s sovereignty or even to infringe upon its territory.
68. Sixth, the Philippines’ so-called “effective control” on the basis of its illegal seizure is null and void. The international community does not recognize “effective control” created through occupation by force. The Philippines’ “effective control” is mere occupation by naked use of force of some islands and reefs of China’s Nansha Qundao. Such occupation violates the Charter of the United Nations and the basic norms governing international relations and is unequivocally prohibited by international law. This so-called “effective control” based on illegal seizure cannot change the basic fact that Nansha Qundao is China’s territory. China firmly opposes any attempt to treat the seizure of some islands and reefs of China’s Nansha Qundao as a so-called “fait accompli” or “status quo”. China will never recognize such a thing. 69. With the formulation and entering